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X v Y ECLI:NL:GHDHA:2025:1020 at the court of Den Haag, acting upon appeal is an interesting ‘residual’ application of the Rome I Regulation 593/2008 and an excellent case to appreciate ordre public.
The parties had married in Iran in 2009. The divorce was established by the courts at The Hague in 2022. Jurisdiction is established under Regulation 2016/1103 (‘Rome IVa) and [5.1], with respect to the dower, under residual Dutch law.
The first instance court held that no lis pendens could be accepted with concurrent divorce proceedings in Iran, due to there not being a recognition Treaty with Iran under which any Iranian finding can be recognised and enforced in The Netherlands. This part of the ruling had not been appealed.
The court also held that the parties’ prenuptial arrangements must be enforced, and that ordre public considerations do not prevent that.
The prenup gave the wife a 50% share in the husband’s estate, unless it was the wife who initiated divorce proceedings; and it included the husband’s dower arrangements, consisting of a (modest) cash payment and additionally 150 Bahar-Azadi gold coins. Payment is indeed by way of dower and not dowry as I had first erroneously reported on X, Bluesky and Linkedin. Thank you
The first instance court argued that ordre public must be applied in ad hoc fashion rather than across the board; that the wife had negotiated a pre-nup which canceled out the ordinarily applicable rule that spouses do not share their property, instead each keeping their separate property, both that brought into the marriage and that acquired before it; that therefore if the wife initiated the divorce, she was brought back to the situation as exists had there not been a prenup (and the same situation which applied to the man at any rate); and that the Dutch legal order’s objection to the pressure the man may therefore put on the wife to initiate the divorce, is not of such an intense nature as to offend ordre public.
As for the dower, the first instance court held that 110 coins be paid immediately and a further 40 when the ex-husband’s financial arrangements so allow: this followed from the application of Iranian law, as clarified by expert report, that any dower above 110 coins may be postponed to take account of the husband’s financial situation.
The appeal court looked at the applicable law issue from a more explicit international /European angle than the first instance court.
For the matrimonial property issue (the 50% issue), the court, like the parties, applies the 1978 Hague Convention. Consequently Iranian law applies. Rather than the first instance court’s assessment of ordre public viz the Dutch provisions on same, the appeal court tests it against Article 14 of the Hague Convention, yet it comes to the same conclusion. Like the first instance court it does so with much reference to the standard Iranian practice. [5.10] ff it holds obiter that even if the provision were to offend Dutch ordre public, the impact of that finding would give the wife an inalienable right to 50% of the husband’s share (not reciprocated for the husband) which in turn would offend ordre public for it would go directly against Iranian law’s intention both party autonomy and protection for the wife: viz that latter element the court points out that in accordance with the applicable Dutch law provisions for maintenance, the wife will be looked after, on top of the dower entitlement which the court addresses next, [5.13] ff:
Rome I A1(2)b excludes “obligations arising out of family relationships and relationships deemed by the law applicable to such relationships to have comparable effects, including maintenance obligations” and in (c) it excludes “obligations arising out of matrimonial property regimes, property regimes of relationships deemed by the law applicable to such relationships to have comparable effects to marriage, and wills and succession”.
The dower element of the claim in the case clearly is not covered by Rome I itself. However The Netherlands, like for instance Belgium, applies Rome I ‘even when it does not apply’ – as long the dower can be considered a contract under the relevant Dutch PrivIntLaw provision (not: the Rome I autonomous interpretation) which the court [5.14] holds it is. [5.17] That the cash payments have been made, is not contested.
The husband claims that the wife divorced him by khul, or khula, with relinquishment of the dower. The court [5.21] disagrees. The divorce is subject to Dutch law, which does not have a khul-type procedure. As for the ordre public arguments under Dutch law (which apply here; contrary to the matriomonial property issues where as noted above, the Hague Convention applies) the appeal court confirms the lower court’s findings. A dower is part and parcel of Iranian law. The case at hand does not offend Dutch ordre public with such intensity that payment of the dower must be dismissed.
[5.21] finally the court holds that parties do not consider that the dower payments of the gold coins are covered by Iranian export sanctions.
An interesting case.
Geert.